United States v. Levy, 195

• Decision Date: 08 October 1971
• Docket Number: No. 195,Docket 71-1471.,195
• Citation: 449 F.2d 769
• Parties: UNITED STATES of America, Appellee, v. Leonard L. LEVY, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

449 F.2d 769 (1971)

UNITED STATES of America, Appellee, v. Leonard L. LEVY, Appellant.

No. 195, Docket 71-1471.

United States Court of Appeals, Second Circuit.

Argued September 22, 1971.

Decided October 8, 1971.

Cono R. Namorato, Dept. of Justice, Washington, D. C. (Fred B. Ugast, Acting Asst. Atty. Gen., Meyer Rothwacks, Crombie J. D. Garrett, John P. Burke, Dept. of Justice, Washington, D. C., Stewart H. Jones, U. S. Atty., of counsel), for appellee.

Curtiss K. Thompson, New Haven, Conn. (Thompson, Weir & Barclay), New Haven, Conn., for appellant.

Before FRIENDLY, Chief Judge, and MULLIGAN, Circuit Judge, and WYATT, District Judge.^*

PER CURIAM:

This appeal is from a judgment of conviction on two counts of willful income tax evasion (26 U.S.C. § 7201) entered after a non-jury trial before Richard H. Levet, Senior Judge of the Southern District of New York (sitting by designation in the District of Connecticut). Appellant Levy was sentenced to concurrent prison terms on each count (suspended after ninety days and later reduced to sixty days) and fined a total of $8,000. He claims that the government failed to prove beyond a reasonable doubt that he willfully evaded the income tax for the years 1963 and 1964. We affirm.

Appellant's major argument on appeal is that the government failed to establish beyond a reasonable doubt that the admitted evasion of tax was willful; of course, willfulness is a necessary element of the crime. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L. Ed. 150 (1954).

On trial appellant produced three expert witnesses who testified to his mental condition from 1961 to 1965. Their testimony was countered by a psychiatrist who testified for the government in rebuttal. There was also substantial testimony and affidavits from laymen to the effect that the appellant was a busy attorney, financially successful and professionally competent. He was active in civic affairs of the community and in 1962 was a candidate for Attorney General of the State of Connecticut. This entire medical testimony and rebuttal was carefully considered by the trial judge who devoted some nineteen typed pages of his opinion, 326 F. Supp. 1285, to a careful analysis of this evidence. He concluded that the government had proved beyond any reasonable doubt that defendant's conduct was willful and that he was able to conform his conduct to the requirements of the Internal Revenue laws. We find that his conclusion was amply buttressed by the record.

It is significant that the appellant who was represented by counsel, stipulated to the filing of incorrect returns in 1963 and 1964 and to substantial understatements of income and income tax in these years. In 1963 he reported income of $41,388.61 and stipulated at trial that his correct taxable income was $75,432.41 and that, as a result of...